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Mediation On-Line

A Newsletter from ADR Resources
Volume 6, #3 (April 2003)
From: s r marsh at adrr . com


Stephen R. Marsh Picture


I really enjoyed the ABA ADR conference, more than I expected. I accomplished everything I hoped to do except for interviewing someone from Missouri (their booth was unmanned the entire conference) and catching Chris Honeyman's presentation (unfortunately it ran against Gerald Williams and Andrea Schneider).

I would like to recommend Mediation Management Services.  The contact person I have is S. Ami Fischer, 1-888-290-7073.  The service they provide is not for everyone, but if you need someone to handle your back office and similar things, you might want to consider them.  Luckily they have a website at that does a fairly good job of explaining what they do, which is handle all of the non-mediation chores involved scheduling mediations -- think of them as replacing a receptionist.  They work month to month (no contracts) and the key to their success is people thinking that they are still worth it every month -- that they are still cheaper than doing it yourself or hiring someone to handle what you can't. Not for everyone, but worth a look. Ami is a mediator out of the SMU program who uses the service and agreed to answer questions about it for callers.

Finally, I had someone contact me about possibly buying the ADR content on this website. I'm not sure that anyone is really going to pay for about two thousand hours of billable time, but if they do take over, the content would still be available, just under someone else's name. Personally I think that the period is over for a while, but I'll let you know if someone actually does more than nibble at me. While I wait on them, I'm promoting National Mediation Service a bit.  I've heard good things about them (they bought Mosten Mediation Services and some other groups).  Since they are panel building, you can go to and see if it interests you or not.

Interesting new Mediation & ADR (and other) web sites

Not so Short Comment One

I just had a breakthrough in understanding the change in lawyers' negotiation patterns that has evolved over the past several decades. The reason for the change is not related to what makes a good negotiator, instead it is based on what happens to bad (or beginning) negotiators. As I was thinking about the trends, I remembered the fact that Incompetent/Ineffective Aggressives beat Incompetent/Ineffective Cooperatives. (I prefer the tern "incompetent" to "ineffective" as it carries a more complete message). This is readily observable, though no one seems to have seen the implications.

Some background. I had the great pleasure of listening to a presentation by Gerald Williams of BYU and Andrea Schneider of Marquette. Andrea has been replicating Williams work and comparing the changes that have occurred over the last thirty or so years. The presentation went over the data and the trends. A major trend is that the number of aggressives is on the rise. A paired trend is that there are fewer (both by percentage and by raw number) competent/effective aggressives and a massive build-up of incompetent aggressives ones.

Since overall, cooperative negotiators have become more effective (which is good news for society), the question arises, why are we having a growth in the number of aggressive negotiators (with aggressives being broken into two types -- ethical and unethical and the unethical ones vastly underperforming the ethical ones)? Why are we getting more of a failed approach rather than more of what works?  While the presentation did not address that issue, I thought I would.

What we are really seeing is a growth in unmentored, unsocialized attorneys. When they vacilate between styles, they are more likely to have someone else eat their lunch if they are cooperative and more likely to "win" if they meet an incompetent cooperative. This makes sense since most law school training in negotiation consists of a rather shallow exposure to "Getting to Yes."  Without discussing the real message of the book or a myriad of other issues (including what happens if the exposure is not shallow), I would note that when about two hundred law schools with programs based on Getting toYes competed with one law school with a program based on Ramundo's Effective Negotiation, the law school ranked in last place, but trained with Ramundo ,won the competition. (Ok, they also had "the other Fred Moss" teaching them -- and they have not done as well since he left the institution for other endeavors, but I think the point is clear).

The interesting thing to do is to ask people what lesson they learned from who won and who lost that competition and there isn't one who learned anything (except Fred who learned quite a bit).

Getting back to the theme of the growth of incompetent aggressive negotiators, what is really happening is that unsocialized, unmentored attorneys are finding a method that works as well (or better) than any other against others who are just starting to learn. (I'm looking for a good term for juvenile negotiators, such as naive, emergent, neophyte, etc.). And once they find it, they are not getting any better at it (in fact, an important trend that Williams noted back in the 70s and 80s is that most aggressive negotiators decline in effectiveness over time, so that they get less competent rather than more competent with experience.  *most* -- not all).

Given the observation that what is really happening is bad self-training from an inadequate base and a paucity of socialization or mentoring, is there anything I would suggest?  Yes (or I would not have asked the question).

First, law schools need to remember that most lawyers do more negotiating than any other task. Negotiating is the most important discretionary task most of them engage in. To the extent that anyone is being taught to "think like a lawyer" rather than to "think like a prospective law professor" they need to learn how to negotiate and how to negotiate effectively.  While I applaud the way that the ADR movement has been welcomed by law schools, as far as preparing students for legal practice it is like adding whipped cream to the menu. Talk with employers about how they react to begin told by a prospective associate "and I'm extra useful because I've had ADR training."

Second, law schools should develop a method of teaching effective negotiation skills. Otherwise the experience driven rise in unethical incompetent aggressive negotiators will only continue.  While it is a fascinating trend, it is also a direct result of failures in basic curriculum design.  It is also fascinating as a train wreck is fascinating, and I'd rather see the trend reverse itself.

Oh, as a side note, I'd love to see the next step in Professor Schneider's research ,which would be a non-self-selected survey (currently responders to the randomly chosen surveys are self-selected) *and* an observational study of a couple hundred attorneys in real negotiations. One of the strongest parts of what Professor Williams did was the follow-up observational studies.  Someone needs to fund Professor Schneider in that endeavor. Considering all the wasted research on negotiation, this one would have merit and would very much be money well spent.

Also, from a societal viewpoint, it would be nice to see a study of real (non-lawyer) human beings in negotiation and a similar observational pool to compare native negotiation styles to learned ones. I think that the process by which native negoation styles give place to learned ones is facinating. An essential part of making ADR work better is to provide inputs to guide that process.

When I look at the things funded by Hewlett and other groups, this one strikes me as more worthwhile than many other uses of money. Real, tangible, concrete and important.

The Recommended Books of the Month, With Thoughts

It is tempting to recommend the same two books again, Conflict Resolution by Dan Dana, and Peacetalk 101 by Dr. Suzette Haden Elgin. One of the best parts of the ABA conference in San Antonio was the number of people who had really enjoyed those books. Dr. Elgin's The Gentle Art of Verbal Self Defense at Work should be a part of most law students' background reading (and I consider it one of several essential texts for someone interested in ADR), but Peacetalk 101 is a great book if you've already read the other. For more on Elgin, visit or

However, I am recommending Testing Multiple Intelligences:  Comparing Evaluation by Simulation and Written Exam, Volume 8, No. 1 Clinical Law Review, page 247 (2001) by Ian Weinstein. The title doesn't really catch the heart of the article, which was Professor Weinstein's investigation into why performance on simulations did not correspond to the written exams on the same topic. Weinstein actually provided continuous feedback and grading throughout the semester, combined with various tests and a written final and amassed a fairly large database of results (450 students were in the database). When you look at what the testing revealed, it provides some interesting insight on how ADR ought to be taught, as well as some very significant implications for grading and instruction in law school.

Also interesting is that he was able to look at the unpublished Boalt Hall study (and if anyone can get me a copy of it, I would appreciate it) that showed a lack of correlation between grades and financial success in the practice of law. There have been a number of similar studies done for MBA graduates (with the surprising showing that there is no correlation between increased income and earning the degree -- something that I learned from the Academy of Management -- visit them at ). Obviously you can't practice law without a degree, but I am curious about how much research has been done.

I'd like to see a non-self selected study using two schools from each of the following groups:

You can note that I've actually divided law schools into "elite" institutions, "top" institutions, "middle" or "quality" institutions and "good, but unfortunately ranked" institutions. I think that fairly divides them. E.g. Texas Wesleyan produces some very good attorneys. It has a terrible ranking. I can't think of any better description than "good, but unfortunately ranked" since the kids there appear to be learning and performing rather well. The so-called "top tier" actually has two groups, the "elite" universities (whose membership varies depending on where you are in the country) and the "top 20" institutions of which there are about forty. Rather than the U.S. News second and third tier, there is actually a "middle" or "good quality" group of schools. Third tier or second tier doesn't fairly capture them since they are solid, quality schools with many, many rock solid, competent and successful graduates. I just can't typify many of them any other way, especially those in the USNews "third tier" which just isn't fair to many of them.

Surveying the financial success of graduates from some schools in each group (and of each grade band in the schools) could tell us a lot, as could a study of post-attrition lawyers (i.e. what happens to a group once you alter it for all of those who quit practicing law -- and does class standing affect who quits practicing).  Currently, kids in law school believe that their first jobs out of law school are iron clad dependent on grades and that the first job will control the rest of their career. I'm curious about that.  Many implications, for the Carnegie Study and others, not to mention a similar study of LSAT scores and success might be interesting (are pre-law grades, law school grades or LSAT scores a better predictor of success after law school?).

Comment/Essay (Two)

[quote] Both within and outside the dispute resolution community, the general impression is that mediation and the law are attached at the hip. And, in truth, they are and have been since the “modern age” of mediation was kicked off by the Pound Conference in 1976. [/quote] from, IN SEARCH OF A PROFESSION: NOTES FROM THE FRONTIER by Barry Simon, Conflict Manager.  You can find Barry at

An interesting issue is whether "mediation" is part of a larger discipline, and if so, what that discipline is and who counts as a "professional" within the confines of the discipline or profession.

The truth is that most attorney-mediators who mediate court-annexed matters, either in family law or in tort law, need a very specialized set of skills and do not have much overlap with other parts of the dispute resolution profession. Some of the "best" mediators I know would never handle a family law case, have never facilitated a public policy dispute, and quite frankly, would not want to. They also skipped the ABA ADR conference even though it was in San Antonio and even though they are ABA members. The general response I get from them when I ask is that there was nothing worth the time and effort. (Now, let me be clear, I also saw a small number of excellent mediators from Dallas who attended the conference -- including one whose card I was looking for as I'd lost it when moving offices, but there were scores who did not).

This group draws attention and some envy because they are able to make an acceptable living from mediating -- I'd estimate somewhere from $60k to $200k a year (net).  Comparable litigators make from $90k to $500k a year. Generally successful attorney-mediators seem to make about half of what they made as litigators as mediators, with exceptions. Many continue to litigate.  Most non-attorney mediators desire to make as much as the attorneys rather than to make about half of what they were otherwise making.

I think there is a larger discipline of dispute resolution. I think it is much more demanding that mediating tort law cases once suit has been filed (which is a demanding area of its own, with sub-specialties). However, I think that the field is distorted because of the revenue stream that tort case mediation represents. Interestingly enough, I don't see any perceptions being distorted by family law mediation, which locally requires additional training past the basic certifications and a board certification in family law on the attorney side.  It is a broader area, with much more room for addressing needs and complex interactions of law, fact and options. It is also much, much harder to enter (given that one generally needs to obtain board certification in family law and then obtain training, advanced training and experience). Its members seem even less likely to join groups or participate.

Other distractions include those strains of mediation and dispute resolution that stemmed from a pro bono movement (I've known people who honestly believed that if the mediator was paid, it could not be "real" mediation), those that were based in justice and social justice movements, and those who are primarly advocacy oriented.

Finally, most groups tend to operate in a vacuum.  Other than the EEOC people who I have seen everywhere, if you attend one type of mediation conference, you are likely not to see people from other types.

For example, San Antonio held one of the best dispute resolution conferences I have ever attended, focused around the labor/management dispute resolution fostered by the federal government at one point (San Antonio has an intense locus of federal employees). The VA administration program was discussed (and sadly, years later in San Antonio, I noted when listening to a discussion of institutional programs in the federal government that the speaker missed the thriving VA program). The huge area of peer mediation in schools (from grade school on up) is rarely noticed, even though many of the people missing it have children.

The Academy of Management has a conflict resolution section (  You would expect that people who want to promote or vend conflict management to business might be involved with that group and would be at the national conference in Seattle this August.  You would generally be mistaken.

Ok, beyond observing that the professional areas are fragmented, what other conclusions can be drawn?

First, we may well need a better term than ADR or Mediation to describe the conflict resolution field. Unless one wants to give the court-annexed field over to the attorneys, there really isn't a good word to describe that insular part of the field (and as a person who uses mediators, I'm not willing to give up the non-attorney mediators I like to hire). We probably need a better overall vocabulary and an agreement on what that vocabulary means.

As an aside, I like the way facilitation has come to mean a specific type of conflict resolution.  E.g. "Facilitator/Trainer Wanted.   The Baltimore City Department of Planning is seeking a facilitator/trainer to provide training and mentoring to Baltimore City Dept of Planning staff to resolve planning or development-related conflicts. To view the RFP, go to:"

Second, both mediation and negotiation would benefit from a realization that there are areas inside of the field that may not transfer well to the rest of the field. Negotiating or mediating a tort claim settlement is really a much different task than mediating a business conflict or a family law issue. While "car crash" cases can be very demanding, they are different in very significant ways from other conflicts.

Third, I would like to see a successful metagroup, much like both the ACR and the ABA are trying to create. I'd like to see Chris Honeyman running it too with Deborah Lauffer as the vice president, if I'm talking dreams here. Guess I'll see what evolves.

Educational Programs / News and Book Reviews/Books/Periodicals

Listening Well: Debunking Myths about "Active Listening" and "Body Language". Saturday, May 3, 2003. Dunsmuir Lodge, University of Victoria. Information:

NORTHWEST INSTITUTE FOR DISPUTE RESOLUTION FEATURES MARY ELLEN REIMUND MAY 19-23, MOSCOW, ID The University of Idaho College of Law is sponsoring the Seventh Annual Northwest Institute for Dispute Resolution on May 19-23. Mary Ellen Reimund (LL.M. '00) will be one of the instructors in a course entitled, "Mediating the Criminal Case." In addition, the institute will offer basic courses in civil and family mediation as well as an advanced negotiation course. For more information, see Note, this school is one that went from a bottom 1% school to a top 50% school in a matter of about five years. They have really worked miracles with the school, though its ADR interest (and such things as the Martin Institute) are many years old.

First African Continental Seminar on Human Resources and Conflict Resolution on June 23-27 in Accra, Ghana. For more information, see

Current Issues

Many diversity conflicts are actually class conflicts and ethnic group conflicts. I've run into some amazing things as I read on the subject.

First, a disclaimer.  My law school, a religiously funded one (BYU), has an active diversity effort that has been unaffected by various legal doctrines. I've a friend whose daughter told us at her Bat Mitzvah she has decided to become an attorney and I suggested BYU because there she would improve her chances of being admitted by being Jewish. There is also a strong effort to recruit African-American and Hispanic students.

Second, I keep reading editorials along the lines of "the plaintiffs all went to working class schools. If we really look at undergraduate education as a factor, we should just skip GPA and only take people from first rank schools" (one writer went so far as to claim that if Michigan dropped affirmative action, it should just pack up and admit that no school in Michigan was as good as Harvard, and that a Harvard grad, regardless of GPA, was better educated than anyone from any school in Michigan). Every time needs based programs are suggested in place of pure race based ones (that benefit specific class strata) there is some pretty severe counter effort by people of higher class status than needs based programs would reach.

Third, some specific (and limited) instances aside, affirmative action admitted students are better qualified than legacy admitted students. The argument that you are creating an alternative legacy makes a great deal of sense. Not to mention, as UCLA's law school reflects, if you make a real effort to mainstream (instead of ghettoize) alternative admits, they perform very well (as well or better than any other group in the top twenty law schools). After all, of the four groups of people admitted to schools, they are better qualified than two others -- not the bottom of the barrel as often assumed.

I've begun to study class and the myth of merit (generally, in America, it is a very Neo-Calvinistic sort of merit, if you've succeeded, you must have merit rather than if you have merit you should be allowed to succeed). I'm working on a business case that illustrates the point, but that is months away from being ready for publication. (In my case, an employee made a number of suggestions.  Each one was good, was implemented with significant cost savings until the last which was implimented, but cost the kid his job because he was acting outside of his class position in the company.  Some really interesting stuff there).

I'm really curious to see how the future will work out with the Michigan case in the Supreme Court, etc.

Submissions to

As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter.  I prefer to post material as you have written it, with no editorial changes by myself.  The above e-mail address (without the spaces -- inserted as a spam block) is the best e-mail address to use to reach me, though I sometimes am not able to check my e-mail for 3 or 4 days.

With my best regards, I remain,

Sincerely yours,

Stephen Marsh
Additional material is sometimes included in the on-line version.
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